Excess Pumping Costs for Drainage District
Appeal Brief
Appeal Letter
Citation: FEMA-1218-DR-SD; Lower Crow Creek Improvement Association; PA ID 000-91011; DSR 85360; Eligibility as a Drainage District.
Cross
Reference: Storm and Flood disaster; determination of drainage districts
Summary: The Lower Crow Creek Improvement Association (LCCIA) applied for disaster assistance in the aftermath of the storm and heavy rains disaster that occurred during the period April 25 to June 22, 1998. The applicant incurred costs when it pumped water into the James River to protect improved property in the Putney Slough area. Initially the applicant indicated on its Notice of Interest that it was a private nonprofit (PNP) organization. When FEMA determined that it did not qualify as a PNP applicant, LCCIA represented itself as a state political subdivision-specifically a drainage district. FEMA generated DSR 85360 on August 25, 1998, for $30,776 to fund pumping costs to LCCIA but suspended the DSR until LCCIA provided documentation to show its legal status as a drainage district. FEMA Region VIII worked with the applicant to establish eligibility but by January 31, 1999, no documentation could be provided. FEMA processed the DSR as ineligible. LCCIA's attorney submitted a July 5, 1999, appeal of FEMA's ineligible determination without providing the documentation that FEMA sought; rather she stated that justification existed in the Brown County courthouse. When the Alternate Governor's Authorized Representative (GAR) asked about documentation, the attorney provided copies of minutes of two meetings, Articles of Association and By-Laws, none of which addressed the question FEMA raised. The GAR forwarded the appeal to FEMA on August 3, 1999. FEMA had previously asked the State's Regional Coordinator in the Office of Emergency Management for an opinion of the applicant's governmental agency status and was informed that no records could be found establishing such. FEMA again submitted a list of questions to the State's Attorney who declined to answer. FEMA, therefore, denied the appeal on February 7, 2000, because no documentation was produced establishing that LCCIA was a legally constituted special purpose body under South Dakota Codified Law. The GAR forwarded the applicant's second appeal on April 17, 2000.
Issue: Was LCCIA a legal entity of the state of South Dakota and eligible to receive disaster assistance from FEMA?
Finding: No. There is no record that LCCIA was legally established as a drainage district.
Rationale: 44 CFR 206.222.
Appeal Brief
| Disaster | FEMA-1218-DR |
| Applicant | Lower Crow Creek Improvement Association |
| Appeal Type | Second |
| PA ID# | 000-91011 |
| PW ID# | 85360 |
| Date Signed | 2001-02-22T05:00:00 |
Cross
Reference: Storm and Flood disaster; determination of drainage districts
Summary: The Lower Crow Creek Improvement Association (LCCIA) applied for disaster assistance in the aftermath of the storm and heavy rains disaster that occurred during the period April 25 to June 22, 1998. The applicant incurred costs when it pumped water into the James River to protect improved property in the Putney Slough area. Initially the applicant indicated on its Notice of Interest that it was a private nonprofit (PNP) organization. When FEMA determined that it did not qualify as a PNP applicant, LCCIA represented itself as a state political subdivision-specifically a drainage district. FEMA generated DSR 85360 on August 25, 1998, for $30,776 to fund pumping costs to LCCIA but suspended the DSR until LCCIA provided documentation to show its legal status as a drainage district. FEMA Region VIII worked with the applicant to establish eligibility but by January 31, 1999, no documentation could be provided. FEMA processed the DSR as ineligible. LCCIA's attorney submitted a July 5, 1999, appeal of FEMA's ineligible determination without providing the documentation that FEMA sought; rather she stated that justification existed in the Brown County courthouse. When the Alternate Governor's Authorized Representative (GAR) asked about documentation, the attorney provided copies of minutes of two meetings, Articles of Association and By-Laws, none of which addressed the question FEMA raised. The GAR forwarded the appeal to FEMA on August 3, 1999. FEMA had previously asked the State's Regional Coordinator in the Office of Emergency Management for an opinion of the applicant's governmental agency status and was informed that no records could be found establishing such. FEMA again submitted a list of questions to the State's Attorney who declined to answer. FEMA, therefore, denied the appeal on February 7, 2000, because no documentation was produced establishing that LCCIA was a legally constituted special purpose body under South Dakota Codified Law. The GAR forwarded the applicant's second appeal on April 17, 2000.
Issue: Was LCCIA a legal entity of the state of South Dakota and eligible to receive disaster assistance from FEMA?
Finding: No. There is no record that LCCIA was legally established as a drainage district.
Rationale: 44 CFR 206.222.
Appeal Letter
February 22, 2001
Mr. Richard B. Smith
Alternate Governor's Authorized Representative
Department of Military and Veterans Affairs
500 East Capitol
Pierre, South Dakota 57501
Re: Second Appeal; Lower Crow Creek Improvement Association;
PA ID 000-91011; FEMA-1218-DR-SD.
Dear Mr. Smith:
This is response to your April 17, 2000, letter forwarding the Lower Crow Creek Improvement Association's (LCCIA's) second appeal of the Federal Emergency Management Agency's (FEMA's) determination that it was not an eligible applicant to receive federal assistance for expenses it incurred as a result of the 1998 heavy rains and flooding disaster (FEMA-1218-DR-SD). In the aftermath of the disaster, LCCIA submitted on August 20, 1998, a Notice of Interest (NOI) in which it stated that it was a Private Nonprofit (PNP) Drainage District. When FEMA informed LCCIA that PNP drainage facilities were not eligible, LCCIA claimed eligibility as a governmental body, specifically a drainage district. The Regional Director subsequently sustained the staff's determination of ineligibility on first appeal.
FEMA wrote Category B Damage Survey Report (DSR) 85360 on August 25, 1998, for $30,776 to fund emergency measures, mainly the pumping of Putney Slough that had flooded during the incident period. FEMA subsequently determined that the DSR was ineligible because LCCIA was not an eligible applicant. LCCIA then claimed eligibility as a subdivision of the state through its association with Brown County. In response to an inquiry by FEMA, the Brown County State's Attorney stated in a March 16, 1999, letter that there were no records indicating that LCCIA was established as a formal entity in Brown County, South Dakota. Since LCCIA did not submit any information to support its claim of eligibility, FEMA denied its request for assistance.
LCCIA submitted a July 5, 1999, first appeal of the ineligible determination through its legal representative, Kari A. Bartling of the Kolker Law Office. Instead of providing copies of documentation establishing LCCIA's legal status, Ms. Bartling stated that the applicant derived funding from one or more political subdivisions of the state and that documentation demonstrating LCCIA's status existed in the Auditor's office at the Brown County courthouse. The appeal asked for a hearing to allow evidence to be produced. Before forwarding the appeal to FEMA, the GAR requested additional documentation from LCCIA. LCCIA's legal representative enclosed minutes of two meetings held in 1966, the Articles of the Association dated May 9, 1952, and the By-Laws of the Putney Slough Improvement Association (undated). The GAR forwarded the appeal to FEMA on August 3, 1999.
The Regional Director denied LCCIA's first appeal on February 7, 2000, with the finding that, although LCCIA had historically acted in the capacity of a drainage district including the assessment of fees and taxes to members of the district, neither LCCIA nor the County Attorney was able to provide documentation to verify that LCCIA was a legally constituted special purpose government body under South Dakota Codified Law (SDCL). LCCIA needed such status to make it eligible to receive federal disaster assistance. The apparent informal arrangement between the County and the applicant did not make LCCIA a legally constituted district pursuant to SDCL 7-25A-1 et. seq.
In this second appeal, LCCIA's counsel enclosed the material that forms its draft Stipulation For Submission of case Upon Facts Pursuant to SDCL 21-25-1 that it intends to submit to a judge for consideration. LCCIA had previously discussed the submission with FEMA's Office of General Counsel and was informed that it had to exhaust all administrative remedies before bringing an action in court.
I have reviewed the documentation submitted with the appeal and have found that this documentation supports the fact that there was a relationship between the Brown County Commission and LCCIA relative to the Lower Crow Creek Drainage Ditch (Ditch). In addition, LCCIA was originally part of the larger Portage-Detroit Crow Creek Drainage Ditch, which had been established as a drainage district in 1918. In May 1952, certain members of the Portage -Detroit Crow Creek Drainage Ditch residents in Putney Slough area joined forces and broke away from the larger district and formed LCCIA as a private association. However, there is no evidence in the documentation that LCCIA was ever formed as a legally constituted special purpose governmental district to perform drainage activities in the Ditch. Based on the above, I can find no basis to overturn the Regional Director's decision on the first appeal. Therefore, I am denying the second appeal.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Doug Gore
Acting Regional Director
FEMA Region VIII
Mr. Richard B. Smith
Alternate Governor's Authorized Representative
Department of Military and Veterans Affairs
500 East Capitol
Pierre, South Dakota 57501
Re: Second Appeal; Lower Crow Creek Improvement Association;
PA ID 000-91011; FEMA-1218-DR-SD.
Dear Mr. Smith:
This is response to your April 17, 2000, letter forwarding the Lower Crow Creek Improvement Association's (LCCIA's) second appeal of the Federal Emergency Management Agency's (FEMA's) determination that it was not an eligible applicant to receive federal assistance for expenses it incurred as a result of the 1998 heavy rains and flooding disaster (FEMA-1218-DR-SD). In the aftermath of the disaster, LCCIA submitted on August 20, 1998, a Notice of Interest (NOI) in which it stated that it was a Private Nonprofit (PNP) Drainage District. When FEMA informed LCCIA that PNP drainage facilities were not eligible, LCCIA claimed eligibility as a governmental body, specifically a drainage district. The Regional Director subsequently sustained the staff's determination of ineligibility on first appeal.
FEMA wrote Category B Damage Survey Report (DSR) 85360 on August 25, 1998, for $30,776 to fund emergency measures, mainly the pumping of Putney Slough that had flooded during the incident period. FEMA subsequently determined that the DSR was ineligible because LCCIA was not an eligible applicant. LCCIA then claimed eligibility as a subdivision of the state through its association with Brown County. In response to an inquiry by FEMA, the Brown County State's Attorney stated in a March 16, 1999, letter that there were no records indicating that LCCIA was established as a formal entity in Brown County, South Dakota. Since LCCIA did not submit any information to support its claim of eligibility, FEMA denied its request for assistance.
LCCIA submitted a July 5, 1999, first appeal of the ineligible determination through its legal representative, Kari A. Bartling of the Kolker Law Office. Instead of providing copies of documentation establishing LCCIA's legal status, Ms. Bartling stated that the applicant derived funding from one or more political subdivisions of the state and that documentation demonstrating LCCIA's status existed in the Auditor's office at the Brown County courthouse. The appeal asked for a hearing to allow evidence to be produced. Before forwarding the appeal to FEMA, the GAR requested additional documentation from LCCIA. LCCIA's legal representative enclosed minutes of two meetings held in 1966, the Articles of the Association dated May 9, 1952, and the By-Laws of the Putney Slough Improvement Association (undated). The GAR forwarded the appeal to FEMA on August 3, 1999.
The Regional Director denied LCCIA's first appeal on February 7, 2000, with the finding that, although LCCIA had historically acted in the capacity of a drainage district including the assessment of fees and taxes to members of the district, neither LCCIA nor the County Attorney was able to provide documentation to verify that LCCIA was a legally constituted special purpose government body under South Dakota Codified Law (SDCL). LCCIA needed such status to make it eligible to receive federal disaster assistance. The apparent informal arrangement between the County and the applicant did not make LCCIA a legally constituted district pursuant to SDCL 7-25A-1 et. seq.
In this second appeal, LCCIA's counsel enclosed the material that forms its draft Stipulation For Submission of case Upon Facts Pursuant to SDCL 21-25-1 that it intends to submit to a judge for consideration. LCCIA had previously discussed the submission with FEMA's Office of General Counsel and was informed that it had to exhaust all administrative remedies before bringing an action in court.
I have reviewed the documentation submitted with the appeal and have found that this documentation supports the fact that there was a relationship between the Brown County Commission and LCCIA relative to the Lower Crow Creek Drainage Ditch (Ditch). In addition, LCCIA was originally part of the larger Portage-Detroit Crow Creek Drainage Ditch, which had been established as a drainage district in 1918. In May 1952, certain members of the Portage -Detroit Crow Creek Drainage Ditch residents in Putney Slough area joined forces and broke away from the larger district and formed LCCIA as a private association. However, there is no evidence in the documentation that LCCIA was ever formed as a legally constituted special purpose governmental district to perform drainage activities in the Ditch. Based on the above, I can find no basis to overturn the Regional Director's decision on the first appeal. Therefore, I am denying the second appeal.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Doug Gore
Acting Regional Director
FEMA Region VIII
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